36 DE FOREST v. MILLER. [Tyler Term,
Opinion of the court.
again asked for a judgment by default, when claimant's
counsel also appeared and moved the court to direct the
issue to be made, tendering to the plaintiffs, subject to the
action of the court, an issue on the part of claimant, "and
offered, as he had done when the cause was first called, to
make up the issues or join therein, as the court miight
The conrt refused to enter a judgment by default, directed
tlhe issue to be made and the cause to stand for
trial when reached in its regular order for trial on the
docket. In this we find no error. There was no default
on the part of claimant that would have authorized the
court to enter the judgment asked by plaintiffs' counsel.
Defendant's attorneys were ready to file an answer or join
issue, if the court should so direct, and repeatedly asked
the court to direct the issue to be formed. The statute
providing for the trial of the right of property provides:
" If both parties appear, the court shall direct an issue to
be made up between the parties and tried by a jury."
(Pas. Dig., art. 5312.) The time taken by the court to
consider what action should be taken neither impaired nor
delayed any legal right of plaintiffs.
The remaining assignments of error, that the court refused
to give the charges asked by'plaintiffs, and refused
to grant a new trial for the reasons set forth in their motion
for a new trial, will be considered together. The
charges asked and refused embraced instructions which
were not the law of the case. The court was not required
to revise or separate that which was applicable from those
portions which were not, and there was no error in the
refusal to give them.
Among the reasons stated in the motion for a new trial,
the error in the charge of the court is mainly relied on.
The charge of the court was in substance correct, but misled
the jury on one point. It informed the jury that of
the goods levied on as the property of Hugo Fox, the de
Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42.. St. Louis, Mo.. The Portal to Texas History. http://texashistory.unt.edu/ark:/67531/metapth28531/. Accessed July 29, 2015.